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Explain the meaning of 'transferred malice'.

The law says that the defendant is accountable if he or she intended to carry out a similar offence although the victim was different.

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We are going to look at what happens if a defendant argues that he cannot be guilty of a crime because he meant to hit someone else not the actual victim. In effect he is saying he did not have the necessary mens rea and his actions amounted to an accident. Is the common law sufficiently flexible to be able to deal with this? The answer is that the common law has established the doctrine of transferred malice in order to criminalise the defendant's conduct.

There is, after all, a victim, so the law, by using the doctrine, is trying to enable the victim to receive justice which might otherwise not be available to them. By enabling justice for the victim the law is also enabling the perpetrator to be punished appropriately for their wrong doing, and society is protected in the process. In effect the law says that the defendant is accountable if he or she intended to carry out a similar offence although the victim was different. Some will argue that this is fair and right because the defendant intended to carry out an offence in any event. The case of R v Latimer (1886) is an example of the doctrine.

In Latimer the defendant was a soldier who got into a fight, he had been attacked by another individual and retaliated by hitting back. The soldier used his belt to hit the other person but the belt rebounded off the original victim and hit a woman causing facial injuries. The defendant was found liable for the injuries suffered by the woman and was convicted even though he had not intended to harm the woman. The mens rea of the original attack was transferred to the second and no 'further' or 'secondary' mens rea was required.

It could be argued that the prosecution's work is made more straightforward in respect of the second offence in that they do not have to prove mens rea other than to show that it existed for the first offence. That may be so but it is a matter of common sense in that the jury needs to know what happened and, provided mens rea is established at some point, then that is sufficient. Why should the prosecution have to prove an 'additional' mens rea when common sense will indicate that this is putting an unnecessary burden upon the prosecution? However, we know that the burden of proof lies with the prosecution and that this is for a very good reason. As we shall see there are limits to the doctrine.

There are parameters to the rule and this includes the principle that the rule can only be applied if a similar offence to the one that was originally planned actually happened, but not if a different offence takes place. This was illustrated in the case of R v Pembleton (1874) where the defendant intended to throw a stone at a mob of people but he missed the crowd and, unintentionally, broke a window instead. The court determined that he could not be convicted of the criminal damage offence – the doctrine of transferred malice could not be applied. The principle being that just because someone had the necessary mens rea for one offence it cannot be assumed that they had the mens rea for another type of offence. To deduce that someone had the mens rea of an assault is one thing, but to then use that to show that the defendant also had the mens rea for criminal damage seems to be a step too far.

This is not to say that the individual will be able escape liability for the actual or second offence, it merely means that it will form the subject of a separate charge. As usual, if the appropriate level of mens rea for this other offence is established the jury are entitled to convict, if not then the accused is entitled to be acquitted. The accused cannot seek to escape liability by arguing that a different outcome came about and that this was not intended. This is rather like the 'but for' rule which is applied when the courts are trying to establish culpability.

This can be shown in the case of R v Saunders (1573) where the defendant handed his wife an apple which he had poisoned with arsenic. His plan was to kill her in order that he could marry again. The wife took a bite but then handed the apple to their daughter and the daughter then died. The defendant was convicted of the murder of the daughter and his intention to murder his wife was transferred to the daughter.

One further point which needs to be made clear is the situation when it is necessary for the doctrine to be used. This is usually when the original plan brings about an injury or harm which is similar to that intended but the victim is different so there is no mens rea for the second victim unless it can be transferred from the first. However this should not be confused with those situations where it can be argued that what really exists is 'indiscriminate malice' and this is different from the doctrine of transferred malice. Indiscriminate malice refers to the type of malice which arises in situations where a terrorist hides a bomb on a railway station or in an aircraft or fires shots into a crowd. Here the law is concerned with the class of potential victims i.e. the passengers on the aircraft, the traveller at the railway station or the person in a crowd – so the actual victim is likely to be part of the group of individuals who formed part of the intended target. In these situations there is no need to apply the doctrine of transferred malice as the mens rea and actus reus are combined and present from the start. The defendant, of course, will not know the names and identity of the victims but this does not matter.

The above arguments identifying 'indiscriminate malice' were articulated by Lord Mustill in the Attorney General's Reference (No 3 of 194) (1998). Being a reference by the Attorney General, the matter would have been considered carefully by the Court of Appeal and the House of Lords so the issues are worth noting. The case in question concerned a man who stabbed his pregnant girlfriend in the stomach. The pregnancy was well advanced and this was known by the accused. The girlfriend was injured but the weapon caused injuries to the unborn foetus and, as a result, the child was born early but, after living some months, later died. The man was charged with grievous bodily harm to the girlfriend and with the murder of the baby.

The trial judge ruled that the doctrine of transferred malice could not be applied to either murder or manslaughter. The effect was that no further action was proposed in relation to the death of the baby. There was considerable consternation about this lack of justice for the child hence the reference by the Attorney General. As a result the Court of Appeal held that the doctrine could be applied and the mens rea and acts against the mother transferred to the child in the form of charges of murder or manslaughter. The House of Lords disagreed and took the view that only a charge of manslaughter could be upheld.

Starting to study the units 'Principles of Criminal Liability' or 'Understanding the Elements of A Crime'? This essay will prove invaluable, it looks at the meaning of transferred malice and how common law has established the doctrine of transferred malice in order to criminalise the defendant's conduct, allowing justice for the victim and punishment for the perpetrator.

It looks at the case of R v Latimer (1886) which illustrates this and also examines the case of R v Pembleton (1874)which illustrates the circumstances when the doctrine of transferred malice could not be applied. The case of R v Saunders (1573)is also discussed.

Indiscriminate malice is explained and reference is made to Lord Mustill in theAttorney General's Reference (No 3 of 194) (1998). As always links are provided for you to use and look into this subject in even more detail.